1217 - Intermittent Employees

Category

Appointments

Audience List

• Personnel Officers
• Personnel Transactions Supervisors
• Examination Managers
• Human Resources Chiefs
• Human Resources Staff

Synopsis

This policy:

• Provides the guidelines for intermittent appointments in California State Service, ensuring compliance with state laws and regulations and applicable Memorandum of Understandings (MOUs) while meeting operational needs.
• Applies to all state agencies utilizing intermittent employees, covering both temporary and permanent intermittent appointments.

Introduction

This policy provides information on the purpose and proper use of intermittent positions, while also explaining the legal bases and eligibility for intermittent appointments.

This policy also explains how departments should properly count time worked for employees appointed to intermittent positions.

Statement

Intermittent employment is irregular or recurring hourly employment that is less than full-time. It is intended to provide a trained work force available on an “on-call” basis to supplement a department’s full-time staff in handling peak or intermittent workloads.

An intermittent appointment is appropriate when the varying nature of the work schedule makes it impractical to use a full-time or part-time appointment with a fixed number of working hours every pay period.

As such, intermittent employees are paid by the hour and there is no absolute guarantee of the total number of hours to be worked. The amount of work an individual intermittent employee may receive depends upon the availability of work.

Intermittent appointments may be made on a permanent or temporary basis.

Application

Duration

A temporary intermittent appointment shall not exceed 9 months or 189 days of work in a 12-consecutive calendar month period. Additionally, no employee may serve in one or more positions under temporary appointment longer than the 9-month constitutional limit.

Intermittent appointments are not to be used to fill full-time or part-time positions. A permanent intermittent employee may work up to 1,500 hours in a calendar year (January 1st – December 31st) or as outlined in the applicable MOU. The number of hours and schedule of work shall be determined based upon the operational needs of each department and consistent with applicable laws or MOU.

Hours worked by intermittent employees must be tracked carefully. Refer to the following to determine how hours worked by intermittent employees are impacted by intra- and inter-departmental employee movement.

There are occasions when unexpected, temporary changes in workload require the intermittent employee to exceed 1,500 hours. Departments must document the business reasons for the unavoidable extension.

All departments have delegated authority to approve extensions of the 1,500-hour limit for permanent intermittent employees subject to audit. The extension does not apply to temporary intermittent employees. Documentation must be kept on file for up to five years and made available for audit purposes upon request.

Civil Service Status                                                

Individuals serving in a temporary intermittent appointment do not receive permanent status in state service. As such, time served may not be counted toward completion of a probationary period.

Individuals serving in a permanent intermittent appointment serve a probationary period and, upon the successful completion of the required number of hours, achieve civil service status.

Minimum Qualifications

Intermittent appointees must meet the minimum qualifications of the classification prior to being appointed.

Advertising and Conducting a Competitive Hiring Process for Intermittent Employees

Appointing powers shall advertise for and conduct a competitive hiring process for intermittent positions the same way they would for other civil service positions.

Probationary Period for Permanent Intermittent Employees

Permanent intermittent employees are required to serve the probationary period assigned to their classification calculated as follows:

A six-month probationary period is equal to 840 hours physically worked.

• 1st report due after 280 hours
• 2nd report due after 560 hours
• Final report due after 840 hours

A one-year probationary period is equal to 1680 hours physically worked.

• 1st report due after 560 hours
• 2nd report due after 1120 hours
• Final report due after 1680 hours

Hours physically worked towards the permanent intermittent employee’s probationary period must be tracked by the appointing power. When computing the number of hours worked, time when an employee is excused from work because of holidays, sick leave, vacation, annual leave, compensating time off, or any other leave shall not be considered as time worked by the employee toward their probationary period. Overtime hours may be counted on an hour-for-hour basis.

Methods of Filling Intermittent Positions

Intermittent positions may be filled with a variety of methods based on the operational needs of the department. Any of the following may be appropriate depending on the tenure and specific requirements of the position:

• Permanent eligible list
• Limited-term eligible list
• Temporary authorization (TAU) if there are no eligibles, or three or fewer eligibles, interested in intermittent work available on the lists identified above. (See Policy #1202 on Temporary Appointments)
• Reinstatement
• Transfer
• Training and Development assignment

Non-testing Classifications may also be used on a temporary intermittent basis. For more information on non-testing classifications, please see Policy #1216.

Overtime Pay

Intermittent employees are paid hourly, regardless of the classification’s WWG. Intermittent WWG E employees may be eligible to receive overtime. Intermittent SE employees receive their regular rate of pay for all hours worked.

7(k) exempt employees are covered under the Federal Labor Standards Act and will earn premium pay for all hours physically worked over 42.75 hours in seven consecutive 24-hour periods (law enforcement classes) or 53 hours in seven consecutive 24-hour periods (fire suppression class). Section 7(k) exemption allows certain employees to have the length of their work periods extended beyond seven consecutive days and to increase the threshold of maximum hours.

Appointing powers should refer to applicable bargaining unit agreements to find more information regarding overtime.

Qualifying Pay Periods For Benefits

An intermittent employee who completes 160 hours of paid employment in a monthly pay period shall be considered to have a qualifying pay period. This qualifies the intermittent employee to receive credit for the following benefits: state service, sick leave, vacation, special in-grade salary adjustment (SISA), and merit salary adjustment (MSA). Paid employment, for the purpose of accruing benefits, is the total of the actual hours worked and paid absences, plus the prorated hours for any holiday in the monthly pay period. It does not include the premium portion of overtime when the time worked is more than the hours required for the work week.

As such, departments must track how many paid hours are worked by an intermittent employee every monthly pay period to determine when the intermittent employee completes a qualifying pay period.

Any hours worked by an intermittent employee more than 160 hours in a monthly pay period shall not be counted or accumulated toward a qualifying pay period. For example, if an employee works 170 hours in the January pay period, the 10 excess hours are not carried over to the following pay period.

Conversely, when an intermittent employee works less than 160 hours in a monthly pay period, those hours shall be counted toward a qualifying pay period. This means that any hours worked in a monthly pay period under 160 hours are carried over and accumulated across multiple monthly pay periods. For example, if an employee works 60 hours in the January pay period, those 60 hours are added to the hours worked in the February pay period. So, if the employee works 90 hours in the February pay period and the department carries over 60 hours from the January pay period, then the employee will have worked a total of 150 hours. If the employee works 100 hours during the March pay period, the department would carry over 150 hours from January and February for a total of 250 hours. Ten hours of the 100 hours worked in March would be counted toward the 160-hour qualifying pay period, while the remaining 90 hours would be carried over to the following monthly pay period.

Leave Credits

Generally, an intermittent employee will become eligible for leave credits with pay after completing 160 hours of paid employment. However, appointing powers should review applicable MOU’s to ensure employees properly earn leave credits.

Special In-Grade Salary Adjustment (SISA)

A special in-grade salary adjustment, when applicable, is effective the first of the pay period following completion of the first 960 hours worked. When computing hours toward the SISA, only count up to 160 paid hours per pay period. These hours include leave, holiday and overtime credits.

Merit Salary Adjustment (MSA)

A Merit Salary Adjustment (MSA) is effective the first of the pay period following the completion of the first 1,920 hours worked. When computing hours toward the MSA, only count up to 160 paid hours per pay period. These hours include leave, holiday and overtime credits.

Alternate Range Change

Approved range changes are effective the day after completion of the required hours and when the alternate range criteria are met.

Health Benefit Eligibility

The state determines employees' eligibility to enroll in health/dental/vision plans by appointment, time base, and tenure. In most cases, all permanent employees who work the equivalent of half-time or more are eligible.

Permanent intermittent employees are eligible for health benefits after working 480 hours during one of two control periods, as provided for in Government Code section 22806:

• January 1 through June 30 (effective enrollment date of August 1)
• July 1 through December 31 (effective enrollment date of February 1)

A permanent intermittent employee cannot attain eligibility in the middle of a control period, even if the employee met the minimum hours at the beginning of the period. To become eligible, the permanent intermittent employee must receive credit for a minimum of 480 paid hours at the end of a control period, pursuant to California Code of Regulations, title 2, section 599.502.

To continue a permanent intermittent employee’s eligibility, the permanent intermittent employee must either:

• Be credited with at least 480 paid hours at the end of each control period; or
• Have at least 960 hours in two consecutive control periods (current and prior)

June 30 and December 31 are the checkpoints used to determine whether a permanent intermittent employee satisfied the hours requirements, according to Government Code section 22806.

An employee who takes health coverage into a permanent intermittent position may continue coverage through a full control period, at which time the department must count the paid hours worked to determine continued eligibility. For example, an employee changes from a permanent full-time position to a permanent intermittent position on February 23. The hours worked during the subsequent Control Period (July 1 - December 31) must be counted to determine if the employee is eligible for continued coverage.

All eligibility is lost if the permanent or permanent intermittent employee is appointed into a temporary or limited term intermittent position. In such case, the health coverage must be cancelled, according to California Code of Regulations, title 2, section 599.501.

For additional information on benefit enrollment, refer to the following Human Resources Manual Section:

• Health – Section 1401
• Dental – Section 1403
• Vision – Section 1404

Government Code section 22806 provides that Bargaining Unit 6 Cadet permanent intermittent employees will be eligible for dental and vision benefits upon graduation from the academy of the California Department of Corrections and Rehabilitation.

Retirement Hours

Intermittent employees are enrolled in the Part-Time, Seasonal and Temporary Employee Retirement Plan (PST) until they have accrued 1,000 hours in a fiscal year. Employees who have accrued 1,000 hours in a fiscal year are eligible to become members of CalPERS. All hours paid while on active state service including paid leave, overtime, and holiday hours worked are applied toward eligibility. For additional information on the PST program, refer to Human Resource Manual Section 1806.

Retired Annuitants

Generally, retired annuitants (RA) are appointed with an intermittent time base and are not permitted to work more than 960 hours each fiscal year. An RA’s compensation shall not exceed the maximum monthly base salary paid to other employees performing comparable duties, according to Government Code section 21224. RA’s do not receive paid holidays, merit salary adjustments, earn leave credits, or differential pay.

This means an RA whose time base is intermittent with a work week group designation of E or SE is entitled to compensation for all hours worked. WWG E employees receive premium overtime for all hours physically worked over 40 in the workweek and WWG SE employees receive straight time overtime for all hours physically worked over 40 hours in the work week.

Additionally, retired annuitants that are 7(k) exempt will earn premium pay for all hours physically worked over 42.75 hours in seven consecutive 24-hour periods (law enforcement classes) or 53 hours in seven consecutive 24-hour periods (fire suppression class).

Additional information on RAs can be found in Human Resources Manual section 1206.

Process

Counting Time Worked for Temporary Intermittent Appointments

The 9-month period shall be counted daily with every 21 days worked, counting as one month or 189 days equaling 9 months. Every day worked is counted toward the 189-day working limit, including the following:

• Any day which the employee physically worked, regardless of the length of time worked on that day (e.g., two hours or ten hours counts as one day).
• Any day for which the employee is on paid absence (e.g., vacation, sick leave, compensating time off, etc.).

The 12-consecutive calendar month timeframe begins by counting the first pay period worked as the first month of the 12-consecutive month timeframe. The employee shall serve no longer than 189 days in a 12-consecutive month period. A new 189-day working limit in a 12-consecutive calendar month timeframe may begin in the month immediately following the month that marks the end of the previous 12-consecutive calendar month timeframe or any subsequent month.

The 189 days working limit shall be calculated per-employee, not per-position or per-agency, pursuant to California Code of Regulations, title 2, section 265.1.

For example, if an employee is hired into a temporary, intermittent position on March 24, 2020, the March 2020 pay period begins the 12 consecutive month timeframe. The department must count each day worked, including partial days and paid absences, from the March 2020 pay period until February 28, 2021, or the February 2021 pay period, which serves as the end of the 12 consecutive month timeframe. If the employee worked the 189th day on August 19, 2020, the employee may not work again until March 1, 2021, or the March 2021 pay period. The employee would not need to be separated. If the employee worked the 189th day on February 26, 2021, the employee would start a new 12 consecutive month timeframe on March 1, 2021.  In this example, the employee would complete the first 12 consecutive month period on Friday, February 26, 2021, and would start working a new 12 consecutive month period the following Monday.

Counting Time Worked for Temporary Intermittent Student, Youth, and Seasonal Classifications

According to California Code of Regulations, title 2, section 265.1, for student, youth, and seasonal classifications, a maximum limit of 1500 hours within 12 consecutive calendar months may be used rather than the 189-day working limit.

For example, if an employee is hired for a temporary, intermittent Student Assistant position on September 10, 2021, the September 2021 pay period begins the 12 consecutive month timeframe. The department may count each day, or each hour worked, including partial days and paid absences, from the September 2021 pay period until August 31, 2022, or the August 2022 pay period, which serves as the end of the 12 consecutive month timeframe. If the employee worked the 1,500th hour on May 9, 2022, the employee may not work again until September 1, 2022, or the September 2022 pay period. The employee would not need to be separated.

Counting Time Worked for Retired Annuitants For Purposes of the 960-Hour Limit

According to Government Code section 21224, retired annuitant appointments shall not exceed a maximum of 960 hours in any fiscal year (July - June) with all state employers without reinstatement or loss or interruption of benefits. (Human Resources Manual section 1206.)

Communicating Working Hours to Intermittent Employees

It is recommended that appointing powers provide intermittent employees with seven calendar days, and in no case less than seventy-two (72) hours, notice of employees’ work schedule, except when employees are called in for unanticipated operational needs. In some cases, such as Seasonal Clerks, the applicable MOU may require a minimum notice period, but it is also considered a best practice. Appointing powers should refer to any applicable MOU to ensure they are adhering to the appropriate standards when communicating working hours to intermittent employees.

Conversion of Permanent Intermittent Positions to Part-Time or Full-Time Positions

Pursuant to California Code of Regulations, title 2, section 277, appointing powers may convert permanent intermittent employees to part-time or full-time employees without appointment from an employment list when specific criteria are met. However, appointing powers must receive the employee’s consent prior to making a time base change.

When considering a time base change, the appointing power must determine if one of the following criteria is satisfied:

(1)      The employee has previously held a permanent or probationary status appointment at or above the desired time base in the classification to which the appointment is to be made or in the classification that is substantially at or above the level of duties and responsibilities and salary level of that classification.  

Example:

• An employee serves as a permanent intermittent Accountant Trainee at the Franchise Tax Board (FTB).
• Prior to this appointment, the employee served as a permanent full-time Accountant I (Specialist) at the Employment Development Department (EDD).
• The FTB may convert the employee’s Accountant Trainee position to part-time or full-time without appointment from an employment list because the employee had already served in a classification, Accountant I (Specialist), that is substantially at or above the salary level of the Accountant Trainee and at the highest time base – full-time.

(2)      The appointing power can clearly demonstrate that the employee has previously been eligible for an appointment from an employment list to the position and time base in question. The appointing power may do any of the following to meet these criteria:

a.    Produce a current certification list for the class and the employee’s name is in one of the top three ranks.

b.    Reconstruct an expired certification list showing the employee was in one of the top three ranks.

c.    Obtain a copy of any interest letter that shows that the employee had been contacted for an appointment at the higher time base and is in one of the top three ranks.

Example:

• An employee serves as a permanent intermittent Tax Technician at the California Department of Tax and Fee Administration (CDTFA).
• The CDTFA produces a current certification list demonstrating that the employee was in one of the top three ranks and reachable for a permanent full-time Tax Technician classification.
• As such, the employee’s time base may be converted to permanent full-time without appointment from an employment.

(3)      For at least two years, the employee has held any combination of permanent or probationary appointments to the types of classes specified in criterion (1) above and has worked at least 1,920 hours in such appointments.

Example:

• An employee serves as a permanent intermittent Accountant Trainee at the FTB.
• Prior to this appointment, the employee served as a permanent part-time Accountant I (Specialist) at the EDD for 1,000 hours. The employee had also served as a permanent part-time Accountant I (Specialist) at the FTB for 1,000 hours – for a total of 2,000 hours worked in the part-time positions. The employee never worked full-time in any prior position.
• The FTB may convert the employee to a permanent part-time Accountant Trainee without appointment from an employment list because the employee had already served in a classification, Accountant I (Specialist), that is substantially at or above the salary level of the Accountant Trainee and cumulatively worked at the part-time time base for at least 1,920 hours in the appointments.
• The employee’s permanent intermittent Accountant Trainee position could not be converted to full-time because the employee never worked the required number of hours at that time base.
• If the employee, prior to their permanent intermittent Accountant Trainee appointment, had served as a permanent full-time Accountant I (Specialist) for the required number of hours (1,920) then the Accountant Trainee position could be converted to full-time.

Compensation when Separating Intermittent Employees

Pursuant to California Code of Regulations, title 2, section 599.827, upon the separation of a intermittent employee, the employee is entitled to a lump sum payment for the time worked during the pay period plus any accrued compensable leave credits. According to Government Code section 19839, if the employee is separated without fault, the lump sum shall be computed by projecting the accumulated time on a calendar basis so that the lump sum will equal the amount which the employee would have been paid had the employee taken the time off but not separated. If the total time to be paid exceeds the hours within the pay period, the additional hours will be applied to the following pay period. (Applicable Bargaining Unit Agreement.)

Automatic Resignation for Permanent Intermittent Employees

Pursuant to California Code of Regulations, title 2, section 448, under certain circumstances, permanent intermittent employees who have not worked one year from the last day they were on pay status creates a presumption that the employee has abandoned his or her position and may be considered to have automatically resigned if the appointing power has offered the employee work during this time period. This excludes circumstances such as when the time not worked was covered by authorized paid leave, a formal leave of absence, or other temporary separation.

Additionally, when a permanent intermittent employee waives three requests by the appointing power to report for work, then the employee may be automatically separated from the appointment, unless the employee was unable to work due to an illness or other reason(s) deemed acceptable to the appointing power, pursuant to California Code of Regulations, title 2, section 599.828. When an appointing power invokes the rule to automatically separate a permanent intermittent employee after three waivers, it must provide the employee with “notice and an opportunity to respond” to the appointing power.  (Coleman v. DPA (1991) 52 Cal.3d 1102.)

The following procedure applies to an automatic separation of a permanent intermittent employee (Coleman v. DPA (1991) 52 Cal.3d 1102):

(1)      Separation Notice

a.    The appointing power must send a written notice of the decision to separate the employee to the employee's address on file with the appointing power. The notice must contain the facts upon which the appointing power relies, i.e., the notice should state the dates of the three waivers, if the employee responded and, if applicable, the reason(s) offered by the employee for not being able to report to work, and why the department deemed the reason(s) unacceptable. The appointing power should prepare a Proof of Service by Mail or a Proof of Personal Service for the notice. A copy of the proof of service should be sent to the employee being separated.

b.    The notice must contain information regarding the opportunity for a perseverance hearing. Include the time periods for obtaining the perseverance hearing and the name of the person to contact for the perseverance hearing. The employee is entitled to five working days within which to respond.

c.    The notice must contain information regarding the right to appeal the separation to CalHR within thirty days of receipt of the notice. Any appeal to CalHR must be in writing and sent to the CalHR’s Statutory Appeals Hearing Division by the employee or his/her representative.

(2)      Perseverance (Coleman) Hearing

a.    The perseverance hearing may be informal. However, it should be conducted by an impartial and disinterested representative of the appointing power who has authority to recommend that the separation be revoked. It is recommended that the Coleman officer selected be someone who was not involved in the initial decision to separate the employee. The Coleman officer should weigh whether the employee waived three requests to work and whether the employee had good reasons for the waivers. Any response from the Coleman officer to the employee should be mailed or personally served along with a proof of service.

(3)      Appeal to CalHR

a.    If the separation is sustained and the employee appeals to CalHR within the timeline and manner pursuant to California Code of Regulations, title 2, section 599.904, CalHR will conduct a hearing to determine whether the employee should be reinstated to their former position.

Prior to invoking the three-waiver rule, the appointing power should review the applicable MOU to determine whether it contains provisions at variance with these recommendations.

Separations for Cause

If a hiring authority has a permanent intermittent employee whose work is unsatisfactory and warrants dismissal, the performance management process must be used for termination since these employees have civil service status and are entitled to due process.

Authorities

• Article VII, section 5 of the California Constitution
• Bargaining Contracts - MOUs
• California Code of Regulations, title 2, section 249.2
• California Code of Regulations, title 2, section 250
• California Code of Regulations, title 2, section 26
• California Code of Regulations, title 2, section 265.1
• California Code of Regulations, title 2, section 277
• California Code of Regulations, title 2, section 321
• California Code of Regulations, title 2, section 322
• California Code of Regulations, title 2, section 448
• California Code of Regulations, title 2, section 599.501
• California Code of Regulations, title 2, section 599.502
• California Code of Regulations, title 2, section 599.609
• California Code of Regulations, title 2, section 599.827
• California Code of Regulations, title 2, section 599.828
• California Code of Regulations, title 2, section 599.904
• CCR, title 2, section 599.828
• Code of Federal Regulations, title 29, section 533.201
• Code of Federal Regulations, title 29, section 553.230
• Government Code section 18552
• Government Code section 19059
• Government Code section 19839
• Government Code section 21224
• Government Code section 22806

Resources

Related Policies

• Policy 1206: Retired Annuitants
• Policy 1216: Non-testing Classifications

Authorized By

Michelle La Grandeur
Chief, Policy Division
State Personnel Board

Contact Person

Personnel Management Division Personnel Management Division
Personnel Management Consultant , Personnel Management Division
Phone: 916-909-3709
Fax: 916-327-1886
Email: pmd@calhr.ca.gov

Superseded Policies

History

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